Palmer v. State

Feb 28, 1951

A-11262

Reporters:: , , , ,
Before:: Jones

JONES, J.

Thе defendant, Harvey Palmer, was charged in the district court of Coal county with the crime of receiving stolen property, .to wit: One set of сheck lines of the value of $10 from one Bobby Ray Foster; was tried, convicted, and pursuant to the verdict of the jury was sentenced to pаy a fine of $250 and has appealed.

Two assignments of error are presented. First, the evidence was insufficient to prove defendant guilty of the crime charged against him. Second, the court erred in admitting evidence reflecting on the character of defendant when he had not offered evidence as to his good character.

Tbe first assignment of error requires a summary of the evidence. Bobby Bay Fostеr testified that he talked to the defendant about stealing some check lines; that he had learned from Boy and Floyd McAusland that Claude West hаd some check lines; and on June 12, 1948, he stole the check lines from Claude West’s barn about 7:30 or 8:00 p. m.; that he left the lines near a fence аnd immediately went to defendant’s house and reported to him that he had the lines which he had stolen ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from Claude West; that he took the defendаnt to where the lines were left; that the defendant looked at the lines and said they were pretty good lines and gave him $3; that he and defendant drove into town and stopped at John Wood’s station where the defendant bought a quart of oil and two bottles of pop in order to get change for a five dollar bill; that the defendant then gave him another dollar, which made a total of $4 he received from defendant for the stolen check lines.

Claude West testified that someone stole his check lines on June 12, 1948, and that on the following Sunday night the sheriff called him to his office where he had his lines, which he the witness identified.

Thea Bonner, sheriff of Coal county, testified that Claude West reported that someоne had broken into his barn and stolen his lines; that after making an investigation he arrested Bobby Bay Foster; that after some questioning Foster told him where the lines were and he took Foster to the defendant’s house; that he, the defendant, and Foster all went to the defendant’s barn where he fоund the lines in a sack, tied to a rafter; that defendant denied taking the lines and accused Foster of hiding them in his barn.

John Wood testified that lie operated a service station at Coalgate; that about 8 p. m. on June 12, 1948, the defendant and Bobby Foster came to his station ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in a car together; that defendant purchased some oil and two bottles of pop and paid for them with a five dollar bill; that he gave defendant back the change.

There were other witnesses who testified for the state but the above summary is sufficient to dispose of the first assignment of error. The defendant did not testify. He contended, through his counsel, that if any crime had been committed by defendant it was that of petit larceny, and offered the evidence of a hardware dealer that new check lines only cost from $9.50 to $13.50.

In Smith v. State, 78 Okla. Cr. 375, 148 P. 2d 994, this court held:

“The general rule of law is that a persоn who steals property is not an accomplice of the one who receives the property, knowing it to be stolen. They are independent crimes.

“The well-recognized exception to this general rule is that if the one who steals and the one who receives the property conspire together, or enter into a pre-arranged ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plan for one to steal the property and delivеr the same to the other, the one who receives it is the accomplice of the one who commits the theft, and vice versa.

“Thе statute providing that no person shall be convicted of a crime on the testimony of an accomplice, without corroboration, was adopted for the purpose of protecting an accused.

“The purpose of the statute providing that no persоn shall be convicted of a crime on the testimony of an accomplice, without corroboration, is to prevent one guilty of а crime from implicating another falsely, for hope of clemency, motives of revenge, or for any other reason.”

See, also, Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170; Finkelstein v. State, 68 Okla. Cr. 341, 99 P. 2d 167; Key v. State, 38 Okla. Cr. 169, 259 P. 659; Pringle v. State, 32 Okla. Cr. 166, 239 P. 948; Brownell v. State, 33 Okla. Cr. 323, 244 P. 65; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286.

The testimony оf Bobby Ray Foster does not expressly show that be was an accomplice. He testified that defendant bad talked to bim about some сheck lines; that be learned from tbe McAusland brothers that Claude West bad some check lines, so be stole them; that after stealing them be shоwed them to tbe defendant, who purchased them for $4. There was no preconceived plan whereby tbe defendant knew of tbe theft of the check lines from Claude West before they were stolen. He had, however, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍told Foster that if be could steal some check lines be would buy them from bim. Under such circumstances tbe trial court submitted tbe issue to the jury as to whether Bobby Ray Foster was an accomplice and fully dеfined an accomplice, and further instructed tbe jury that tbe defendant could not be convicted upon tbe uncorroborated testimony of an accomplice. An instruction was also given defining corroborative evidence. There is no complaint presented аs to any of these instructions.

Assuming that tbe jury found that Bobby Ray Foster was an accomplice of tbe defendant, there was ample corroborative testimony to sustain tbe conviction. Tbe check lines were found in tbe possession of defendant. John Wood saw tbe defendant аnd Foster together tbe night tbe lines were stolen and changed a five dollar bill for defendant. While tbe sheriff was making an investigation of tbe theft, tbe defendant sent word by Don Batchelor to Foster that he wanted to see bim, and Batchelor and the McAnsland boys, after telling Foster that the defendant wanted to see hixn, saw defendant and Foster have a private conversation. Batchelor and the McAnsland brothers testified concerning this circumstance.

The second assignment of error concerns the testimony of Bobby Foster that the defendant also told him that he knew where some wire was and that if Foster would steal it for him he would give him $6 a spool. The testimony on this proposition was admitted without objectiоn. At the time Foster gave this testimony he also related the conversation that he had with the defendant when the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant talked to him about wаnting some check lines, which was in a part of the same conversation. Since this testimony was admitted without objection the defendant may not now question its admissibility. Moreover, we think the evidence was admissible as bearing upon the question of the guilty knowledge or intent of the defendant in rеceiving the property which had been stolen.

It has been held that evidence showing that the defendant accused of receiving stolеn property had bought other stolen property from the thief at about the same time was admissible for the purpose of showing guilty knowledge or intent. Smith v. State, supra. There is no reversible error in the record.

The judgment and sentence of the district court of Coal county is affirmed.

BRETT, P. J., and POWELL, J., concur.